Local man disputes 9 water convictions

Sunday

Jul 15, 2012 at 12:45 AMJul 15, 2012 at 3:45 AM

A rural Eagle Point man vows to continue his decade-long legal fight with state water managers over what they say are three illegal reservoirs and what he says are merely ponds holding rain and snow runoff from his property.

By MARK FREEMAN

A rural Eagle Point man vows to continue his decade-long legal fight with state water managers over what they say are three illegal reservoirs and what he says are merely ponds holding rain and snow runoff from his property.

Gary Harrington said Friday that he plans to appeal his conviction last week on nine misdemeanor charges for filling his reservoirs with rain and snow runoff that the state maintains is owned by the Medford Water Commission.

Harrington said he stores the water mainly for fire protection.

Harrington objects to the way the Oregon Water Resources Department interprets a 1925 state law granting the commission broad water rights to the Big Butte Creek Basin and believes he's been singled out for prosecution amid other pond owners in the basin.

"When it comes to the point where a rural landowner can't catch rainwater that falls on his land to protect his property, it's gone too far," Harrington said.

"This should serve as a dire warning to all pond owners."

State water officials hope Harrington's scheduled July 25 sentencing on the misdemeanors marks an end to what they consider a constant and tiring battle. The legal dispute has dragged through the state court system in one form or another since he was first convicted of illegally taking water without a permit in 2002.

"Water law is water law, whether you agree with it or not," Jackson County Water Master Larry Menteer said.

At the request of the Jackson County District Attorney's Office, Harrington's case was prosecuted by the state Department of Justice. DOJ prosecutor Patrick Flanagan handled the case; he declined to comment until after Harrington's sentencing.

After years of representation by a Medford attorney, Harrington fired his counsel in May and represented himself in his trial, which opened Tuesday. It ended Wednesday with a six-member jury ruling for convictions on three counts each on charges of illegal use of water denied by a watermaster, unauthorized use of water and interfering with a lawfully established head gate or water box.

The charges are either Class B or unclassified misdemeanors. Harrington pleaded guilty to similar charges in 2002 and applied for permits for his reservoirs, but they were denied.

At issue is the interpretation of a law passed in 1925 by the Oregon Legislature giving the water commission exclusive rights to all the water in Big Butte Creek, its tributaries and Big Butte Springs — the core of the city's municipal water supply.

In court filings Harrington has argued that he's not diverting water from the creek system, merely capturing rainwater and snowmelt from his 172 acres along Crowfoot Road.

Harrington has maintained that this runoff, called "diffused water," does not fall under the state water-resources jurisdiction and does not violate the 1925 act.

In the past, water managers have concluded that the runoff is a tributary of nearby Crowfoot Creek and thus subject to the law.

"It's a 10-year-old case," said Janelle McFarland, the original Oregon State Police trooper who investigated the initial complaints but has since retired. "Mr. Harrington was given every opportunity to comply with the water law and he chose not to."